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Muslim Minorities Jurisprudence Iyad Zahalka (Trans ajiss34-1_ajiss 1/23/2017 11:56 AM Page 114 114 The American Journal of Islamic Social Sciences 34:1 Shari’a in the Modern Era: Muslim Minorities Jurisprudence Iyad Zahalka (trans. Ohad Stadler and Cecilia Sibony) Cambridge: Cambridge University Press, 2016. 224 pages. Iyad Zahalka’s commendable Shari’a in the Modern Era: Muslim Minorities Jurisprudence gives researchers and legal practitioners an overview of the emerging fiqh al-aqalliyyāt (the jurisprudence of minorities) discipline. In fact, at the time of its publication several other books were published on this subject, among them Uriya Shavit’s Shari’a and Muslim Minorities: The Wasati and Salafi Approaches to Fiqh al-Aqalliyyāt al-Muslima (Oxford: Ox- ford University Press, 2015) and Said Fares Hassan’s Fiqh al-Aqalliyyāt: His- tory, Development, and Progress (New York: Palgrave Macmillan, 2016). ajiss34-1_ajiss 1/23/2017 11:56 AM Page 115 Book Reviews 115 Zahalka credits Shavit with giving him useful comments while preparing Shari’ah in the Modern Era . It is no coincidence that all of these books are from a Sunni perspective with particular focus on the works of two well-known scholars in the Sunni legal world: Yusuf al-Qaradawi and Taha Jabir al-Alwani (d. 2016). Zahalka’s book, therefore, captures the gradual creation of another – or perhaps a new – branch of fiqh that focuses on the socio-legal issues faced by Muslims ruled by non-Muslim sovereigns or systems that conflict with Islamic law. His ob - jective is to examine the “ fiqh al-aqalliyyāt of the wasaṭi faction, a school of thought dominated by the Muslim Brotherhood that positions itself in the mid - dle ground between conservative resistance to changing religious laws and the disintegration of the commitment to religious tradition” (p. 4). The author identifies this conservative resistance as coming from the Salafi school of thought, which rejects using ijtihād and any creative legal development to re - spond to modern challenges. Specifically, he concentrates “on the develop - ment of the fiqh al-aqalliyyāt doctrine, its major trends and influence on Muslims residing in the West, and the manner in which they deal with the public and legal ramifications” (p. 6). The book’s context is intriguing, for Zahalka is a qāḍī (judge) of the Shari’a Court of Jerusalem and former director of Israel’s Shari’a Court sys - tem. He directs his attention to the legal experiences of Muslims living in Israel in terms of understanding and practicing their law, just as he did when analyzing the experiences of Muslims in the United Kingdom. This gives the book a decidedly practical tone, and it is therefore of interest to Muslim and non-Muslim legal practitioners. Chapter 1 deals with this emerging discipline’s theoretical background and evolution, chapter 2 presents its methodology and implementation in personal status law, chapter 3 deals with the Shari’a’s im - plementation in general and that of the jurisprudence of minorities in partic - ular, chapter 4 explains the case of Israel in the context of this discipline, and chapter 5 provides some thoughts on its future. After overviewing the classical jurisprudential law on Muslim minority issues according to the four Sunni madhāhib , the author explains what he con - siders to be new jurisprudential laws, via this new fiqh , that not only breaks from the classical dār al-Islām (the territory of Islam) and dār al-ḥarb (the territory of war) paradigm, but also attempts to offer creative solutions for Muslim minorities. He then elaborates upon the jurisprudential methodology behind arriving at these new solutions as regards such issues as mortgage, marriage, divorce, and the appointment of Muslim and non-Muslim judges, and then uses interviews, data, and sociological analysis to assesses how they are implemented by Muslims living in the West. ajiss34-1_ajiss 1/23/2017 11:56 AM Page 116 116 The American Journal of Islamic Social Sciences 34:1 The book seeks to present a view of Muslim jurisprudence that can re - spond to the modern era’s unique social situations. At the same time, Zahalka argues that the fiqh of minorities does not break from the past’s legal method - ology, but rather extends its scope by using principles articulated by previous jurists, such as the objectives of the shari’a ( maqāsid al-shari’a ) ... priorities in jurispru - dence ( fiqh al-awlawiyyāt ), balance in jurisprudence ( fiqh al-muwāzanāt ) ... opting for the lesser of two evils ( akhaf al-ḍararayn ) ... annulling a decree in case of necessity ( darūra ), or under certain circumstances when a need becomes a necessity, thus overruling a decree or religious law ( al-hajiyat al-munāzila manzila al-ḍarūrāt ). (p. 188) All of these jurisprudential tools are applied within Shatibi’s formulation of what he considered the Shari’a’s goals: “(1) the preservation of religion; (2) the preservation of the soul; (3) the preservation of mental capacities; (4) the preservation of the lineage; and (5) the preservation of property” (p. 64). What Zahalka argues is that al-Qaradawi’s usage of these tools to create solutions for Muslim minorities in western countries is a sign of Muslim ju - risprudential creativity. He cites numerous examples from al-Qaradawi’s own works, as well the cases received by the European Council of Fatwa and Re - search (ECFR) to prove this. These include al-Qaradawi’s opinions that Mus - lims may take out mortgages despite paying and receiving interest, serve in the army of a non-Muslim state when it faces an external threat, a female con - vert can remain married to her non-Muslim husband under certain conditions, and a Muslimah may marry without her guardian’s consent if the man’s piety is unquestionable (pp. 98-107). Despite these new rulings, several of which stem from his opinions, the book has certain theoretical limitations. For example, Zahalka rarely delves into the nature of the Shari’a itself, namely, what does God intend for human beings on a philosophical and metaphysical level? How does a vision of the Shari’a transform a Muslim jurist’s legal outlook? The answers to these sec - ond-order questions would necessarily affect this discipline’s wasaṭī approach, which he claims to be the most effective approach in dealing with Muslim minorities in the West. He states, I believe that the doctrine [i.e., fiqh al-aqalliyyāt ] has developed on the principle of religious law, and constitutes more than a judicial approach de - signed to rule on specific cases. In my opinion, fiqh al-aqalliyyāt presents an innovative religious law as it is manifested in the primary sources of sharia. (p. 187) ajiss34-1_ajiss 1/23/2017 11:56 AM Page 117 Book Reviews 117 The problem here is that he has assumed an understanding of religious law that is fused with past jurists’ deliberations upon it. For example, the Shari’a objectives formulated by al-Shatibi and al-Ghazali reflect a defensive approach to law: the preservation of religion, soul, mental capacities, lineage, and property. One may question why law should be framed in this way, when it could be conceived of in terms of the individual’s dignity, the rights dis - course, or an existentialist view of the human being that emphasizes self- de termination. This kind of analysis requires a deeper engagement with the primary sources of the Shari’a and their conceptual meaning – a point he alludes to by mentioning the thoughts of al-Alwani, who, in contrast to al-Qaradawi, be - lieves that we must reinterpret primary source material. Al-Alwani opposes the claim that fiqh al-aqalliyyāt is based on needs and necessities because it is not enough to accept religious tradition at face value or to amend laws in accordance with uṣūl al-fiqh . In addition, fiqh al-aqalliyyāt should not be re - garded as just another branch of fiqh , but rather as a more encompassing ju - risprudential system. Despite mentioning both scholars’ approaches, Zahalka concludes that “nevertheless, both approaches produce similar religious laws, as the disparity in the final outcome is inconsequential and only apparent on the level of prin - ciple” (p. 69). Actually, the outcome is extremely consequential because al- Alwani’s approach has major long-term implications for the Shari’a’s very nature. If it is something more than just examining the needs and necessities of individuals, then fiqh al-aqalliyyāt becomes a very different jurisprudential system altogether. Ironically, the author’s own analysis of al-Qaradawi’s stance shows the limitation of the current worldview on fiqh al-aqalliyyāt . Like Qaradawi, Halawa believes that alleviation for Muslims in Europe stems from a similar position to that of fiqh al-da‘if , religious law for the frail. In this sense, the relief does not derive from a particularised religious law for minorities but rather from a general religious law that seeks to alle - viate the burdens of the weak; this may be compared to the ways in which a sick person is entitled to unique laws due to his condition. (p. 70) This analogy reflects a core tension in how the Shari’a is conceived – those who cannot practice its already accepted notions are regarded as excep - tions to be dealt with through legal remedies. If this is really the case, then Is - lamic law cannot be classed as “innovative” because it considers human conditions as stagnant with exceptions, rather than as evolutionary. The emerg - ing works of Shaykh Arif Abdulhussain of the Al-Mahdi Institute in the United ajiss34-1_ajiss 1/23/2017 11:56 AM Page 118 118 The American Journal of Islamic Social Sciences 34:1 Kingdom as to the nature of the Shari’a would significantly help Zahalka’s theoretical discussions about the nature of religious law itself.
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